G.B.Singh - (1.) THIS is a petition under Section 482 CrPC for quashing the proceedings of Criminal Case No. 621 of 1985 pending in the Court of Judicial Magistrate, Pratapgarh.
(2.) THE undisputed facts are that the petitioner is running a shop at Babuganj Bazar district Pratapgarh. On 11-3-1986 a sample of linseed oil was taken from his shop by the Chief Food Inspector, Pratapgarh and it was sent for analysis to the Public Analyst. THE report of the Public Analyst was that the sample was adulterated and it was not to the prescribed standard. THE petitioner is, therefore, being prosecuted for an offence punishable under Section 7/16 of the Prevention of Food Adulteration Act, and the case is pending in the Court of Judicial Magistrate, Pratapgarh. THE petitioner moved an application under Section 13 (2) of the Prevention of Food Adulteration Act for sending the sample for analysis to the Central Food Laboratory Calcutta which was allowed and the sample was ordered to be sent for analysis to the Laboratory. THE sample could not be analysed as the bottle was found in broken condition and, thus, certificate of the Central Food Laboratory about the alleged adulteration could not be obtained. THE third bottle of sample had also been broken and, thus, there was no other sample available for being sent to the Central Food Laboratory for analysis. THE petitioner, therefore, moved an application before the learned Judicial Magistrate that the proceedings may be dropped and he may be discharged as he has been deprived of his statutory right to get the sample analysed by the Central Food Laboratory under Section 13 (2) of the Prevention of Food Adulteration Act. THE learned Magistrate rejected the application vide order dated 10-8-1988 and fixed 20th August, 1988 for recording evidence under Section 247 CrPC. Feeling dissatisfied with this order the present petition has been filed. It was argued by the learned counsel for the petitioner that the petitioner should have been discharged under Section 245 CrPC because in absence of any certificate of the Central Food Laboratory and in view of the deprivation of the petitioner of his statutory right to get the sample analysed by that laboratory, the petitioner cannot be convicted. Learned counsel for the State, on the other hand, argued that the petitioner was claiming discharge under Section 245 CrPC and it could be done by the learned Magistrate only when no case had been made out against him and on the basis of the nonavailability of the certificate of the Central Food Laboratory it cannot be said in the circumstances of the case that no case had been made out against the petitioner. He further argued that the learned Judicial Magistrate rightly rejected the application of the petitioner in the circumstances of the case. I find much force in the argument of the learned counsel for the State and the contention of the learned counsel for the petitioner does not appear acceptable at all. Section 245 CrPC lays down that if upon taking of the evidence referred to in Section 244 CrPC the Magistrate considers for reasons to be recorded that no case against the accused has been made out, the Magistrate shall discharge the accused. Section 246 CrPC further lays down that when such evidence has been taken and the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and which would be adequately punished by him he shall frame in writing a charge against the accused. The impugned order of the learned Judicial Magistrate reveals that when the application for discharge had been moved by the accused petitioner, the charge under Section 246 CrPC had already been framed and the case was proceeding under that provision. It shows that the stage when the accused could be discharged under Section 245 CrPC had already been crossed. The petitioner could not, therefore, be discharged under Section 245 CrPC when the application for the same had been moved on behalf of the petitioner. It may also be added that after framing charge there could be an acquittal and not an order of discharge.
(3.) EVEN if it is assumed that the application had been moved on behalf of the petitioner for discharge at the proper stage the point to see is if he could be discharged in the circumstances of the case. Under Section 245 CrPC the accused could be discharged only when no case against the accused had been made out by the evidence led against him under Section 244 CrPC. It is undisputed that there was a report of the Public Analyst against the accused petitioner indicating that the sample was adulterated. The fact that the petitioner applied for sending another bottle of the sample to obtain certificate of the Director of the Central Food Laboratory and it could not be obtained because the bottle was found broken does not necessarily lead to the conclusion that the report of Public Analyst was not correct or it had become worthless piece of evidence. The right of an accused to get the sample analysed by the Central Food Laboratory is a very valuable right and he should not be deprived to this right by any conduct of the prosecution. If the accused has been deprived of such right on account of some carelessness of or delay by the prosecution or the complainant the accused can claim benefit under Section 13 (2) of the Prevention of Food Adulteration Act. If the complainant or the prosecution cannot be held responsible in getting the sample analysed by the Central Food Laboratory, it is difficult to give any advantage to the accused. This view gets support from the observations made in Municipal Corporation of Delhi v. Ghisa Ram, 1967 CrLJ 939 SC. The relevant observations have been made in para 3 of the case and they are as given below : " If, for any reason, no certificate is issued, the report given by the Public Analyst does not cease to be evidence of the facts contained in it and does not become ineffective merely because it could have been superseded by the certificate issued by the Director of the Central Food Laboratory. Further, there being no certificate issued by the Director of the Central Food Laboratory, no question can arise of his certificate becoming final and conclusive evidence of the report contained in it." It has been further held in paras 7 and 8 of the case that; "(7) It appears to us that when a valuable right is conferred by Sec. 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because ,the certificate of the Director supresedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose Certificate is to be accepted by Court as conclusive evidence. In case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudicated that it would not be proper to uphold his conclusion on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein. (.8) We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible." From these observations it is evident that there is no absolute rule of law that where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated he cannot be convicted. Each case is to be decided on the basis of its own facts and, in case the conduct of the prosecution results into denial to the vendor of an opportunity to exercise this right, he can claim acquittal on the ground that his case has been seriously prejudiced. Thus, the conduct of the prosecution shall be considered when the petitioner would claim prejudice and deprivation of his right under Section 13 (2) of the Prevention of Food Adulteration Act. This can be appreciated and decided after the evidence in the case. Thus, the petitioner could not claim discharge because he is not likely to get benefit of the certificate of the Central Food Laboratory.;